[2024] UGCommC 117

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (CoMMERCTAL DrVrSrONl

## HCCS NO.348 0F 2o2L

ASHISH LIFE SCIENCE PVT LTD :::::::::::::::::::::::::: PLNNTIFF

#### VERSUS

MTKUGANDALTD :::::::::::::::::::::::::::::::::: DEFENDANT

Before: Hon. Lady Justice Patricia Kahigi Asiimwe

### Judgment

Introduction:

1. The Plaintiff sued the Defendant for recovery of USD 267,261.30 being the value of the goods supplied to the Defendant, general damages, and costs of the suit.

The Plaintiff's case:

- The Plaintiff contends that on various dates since March 2019, the Plaintiff supplied the Defendant with veterinary pharmaceutica-l products and other related products pursuant to local purchase orders. 2 - 3 In the course of the business relationship, the Plaintiff supplied the products but payments were not regular and because of financial constraints of the Defendant, and in a bid to maintain the business relationship, the Plaintiff opted to waive the strict terms of payment. - The outstanding amount due to the Plaintiff was USD 267,261.30. 4 - 5 In spite of several demands and reminders, from the Plaintiff, the Defendant has failed to and or refused to settle the said S1lIrrS.

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A.

### The Defendant's case

- 6 The Defendant stated in the written statement of defence that the Plaintiff supplied goods which were periodically paid for and some of the goods were rejected as damaged and unsuitable for purposes. - 7 The Defendant stated that the reconciliation to confirm payment and obligations between the parties are the subject of HCCS 51 of 2O2I between the parties wherein reconciliation confirms that the Defendant is owed a sum of USD 1O,OO0 by the Plaintiff.

## Representation:

At the hearing the Plaintiff was represented by M/S Kabayizi, Kavuma, Mugerwa & Ali Advocates. The matter proceeded ex parte the defendant having been served with hearing notices did not make an appearance. 8

## ^Issues:

- The issues for resolution are as follows: 9 - I. Whether the Defendant is indebted to the Plaintiff for sum of USD 267 ,261.30 - II. Whether the Plaintiff is entitled to the remedies sought

# Evidence

10. At the hearing, the Plaintiff called two witnesses Dr. Sanjeev Sarkar (PW1) the director of the Plaintiff company and, Naren Vempaty (PW2) the country manager of the Plaintiff. Both witnesses stated in their witness statements, stated that on l"t August 2023. T}:^e parties signed a contract under which the Plaintiff overtime supplied the Defendant with veterinar;r pharmaceutical products and other related products worth USD 667,02 1.80. They adduced a copy of the contract marked PEl.


- PW2 stated that some of the bundles of the said products $11.$ were transported by air through Ethiopian Airlines from Mumbai, India to the Entebbe International Airport and subsequently delivered to the Defendant. More supplies of the pharmaceutical products were shipped from Mumbai, India to Mombasa and finally delivered to the Defendant in Kampala. Copies of the airway bills and bills of lading were subsequently forwarded to the Defendants through an email. He adduced the Airway bills marked PE2, the bills of lading, and the packaging lists of shipment marked PE3 and PE4 as well as the email correspondences. - The Plaintiff sent invoices to the Defendant demanding 12. payment for goods supplied. That on the 17^th of July 2019 and 30^th of July 2019, the chief operating officer of the Defendant company sent email correspondences to the Plaintiff admitting the amount due to the Plaintiff and indicating that payment of the Plaintiff's outstanding money was only delayed by their bankers. The Plaintiff also adduced due for payment marked invoices ${\rm PE6}$ and email correspondences admitting to the amount due marked PE8. - That in the course of the business relationship, the Plaintiff 13. supplied the veterinary pharmaceutical products to the Defendant but the Defendant's payments for the supplies were not regular and because of the financial constraints of the Defendant and in a bid to maintain the business relationship, the Plaintiff opted to waive the strict terms of payment. An email correspondence varying the payment period from 45 days to 90 days was also adduced in evidence. - $14.$ Both witnesses further stated that by $27^th$ September 2019, the outstanding amount due to the Plaintiff had accumulated to USD 267,261.30 which the Defendant admitted to but has failed and or refused to settle.

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$15.$ PW1 and PW2 also stated that the Plaintiff has since fully terminated the supply agreement it had with the Defendant company for failure to pay the outstanding amount due to the Plaintiff. They adduced a copy of the letter of termination marked PE13.

## Resolution:

*Issue 1: Whether the Defendant is indebted to the Plaintiff for USD* 267,261.30

- $16.$ It is the general rule in civil matters that he or she who alleges must prove his or her allegation. The Plaintiff is required to prove his or her case on the balance of probability. Section 101 of the Evidence Act, Cap 6, provides that: - (1) *whoever desires any court to give judgment as to* any legal right or liability dependent on the existence of facts which he or she asserts must *prove that those facts exist.* - $(2)$ *when a person is bound to prove the existence of* any fact, it is said that the burden of proof lies on that person." - 17. Section 103 of the Evidence Act provides that: "The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on that particular person." - The Plaintiff submitted in evidence an agreement between the 18. parties (PE $1$ ) under which it was agreed that the Plaintiff would supply the Defendant with veterinary pharmaceutical products and other related products. - 19. PW1 testified that the Plaintiff supplied the Defendant with veterinary pharmaceutical products and other related products and issued invoices which were due for payment.

- 20. PW2 further testified that the supplies were transported to the Defendant by air from Mumbai India to Entebbe and others by ship to Mombasa. The airway bills and bills of lading were subsequently emailed to the Defendant through email correspondences marked PE17, PE18, PE19, and PE20. - In the case of **Barore Company Limited Versus Katamba** 21. Samuel Muhozi T/A Savanna Bus Services & Runoni **Traders Limited** Civil Suit No. 0011 of 2019 Mubiru J held that "It is a settled rule that once the Plaintiff makes out a prima facie case of an outstanding debt in his favor, the evidential burden shifts to the defendant to controvert the plaintiff's prima facie case; otherwise, judgment must be entered in favor of the plaintiff." - 22. The Defendant in the written statement of defence admitted that the Plaintiff supplied them with goods. They contended that they periodically paid for the goods but some of the goods were rejected for being damaged and unsuitable for purpose. The Defendant further stated that they carried out a reconciliation and found that the Plaintiff owes the Defendant USD 10,000. However, no evidence was submitted to support this defence. - Court notes that the Plaintiff presented email $23.$ an correspondence dated 16^th October 2019, between the parties wherein the Defendant committed to "clearing whatever rightful dues owed." (PE 11), - $24.$ The Plaintiff led evidence to prove that there was a contract parties for the supply between the of veterinary pharmaceutical products and other related products, the products were delivered by air and by sea. The bills of lading, packaging lists, and airway bills indicate the Defendant as the beneficiary. In addition, invoices were issued to the

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Defendant. The Defendant did not adduce any evidence to controvert the Plaintiff's evidence.

$25$ Court finds that the Plaintiff is entitled to payment of USD 267,261.30 for goods supplied. The issue is therefore answered in the affirmative.

*Issue 2: Whether the Plaintiff is entitled to the remedies sought*

- The Plaintiff prayed for general damages. Counsel in his 26. submissions submitted that general damages are the direct natural or probable consequence of the wrongful act complained of and include damages for the pain, suffering, inconvenience and anticipated future loss as held in *Storms versus Hutchison [1905] AC 515.* - In the case of **Progressive Group of Schools Ltd & 2 others** 27. versus Barclays Bank of Uganda Ltd T/A Absa Bank (U) Ltd & Luyanzi Academic Foundation [Civil Appeal No.349] **of 2020**, the Court of Appeal held that; "It is trite law that general damages are awarded in the discretion of Court. They are awarded to compensate the aggrieved, fairly for the inconveniences accrued as a result of the actions of the respondent." - The Court of Appeal in the above case cited the case of 28. Kibimba Rice Ltd vs Umar Salim, S. C. C. A No.17 of 1992, where it was held that a Plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been if she/he had not suffered the wrong. - 29. In the case of **Maruri Venkata Bhaskar Reddy Versus Bank** of India (Uganda) Ltd [Civil Suit No. 804 of 2014 it was held that in the assessment of general damages, the court should be guided by the value of the subject matter, the economic inconvenience that the plaintiff may have been put through and the nature and extent of the injury suffered.

- 30. PW1 in his witness statement stated that as the result of the Defendant's conduct, the Plaintiff has suffered loss and inconvenience as it has not been able to make use of the money that rightly belongs to it and for which the Defendant has no reason to hold it. - 31. He further stated that as a result of the Defendant's failure to discharge its obligation to the Plaintiff company by payrng the outstanding balance, he had to travel to Uganda twice to meet the officers of the Defendant thus incurring travel expenses including cost of air tickets, hotel expenses, living expenses which were not budgeted for. - 32. In the present case considering the value of the subject matter and inconvenience caused to the Plaintiff, the Plaintiff is awarded general damages of USD 2O,0O0. - 33. In conclusion, judgment is entered for the Plaintiff against the Defendant for payrnent of the following: - The sum of USD 267 ,261.30;, a) - General damages of USD 20,0O0; b) - Interest of 6oh per annum on a) and b) above from the date of this judgment until payment in full; and c) - Costs of the suit. d)

## Dated this 28th day of Marcb 2024

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### Patricia Kahigi Asiimwe

Judge

### Delivered on ECCMIS

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